FAIR EMPLOYMENT TRIBUNAL

CASE REF:  88/08FET

CLAIMANT:		Anthony Donaghy

RESPONDENT:		Dungannon and South Tyrone District Borough Council

DECISION

The unanimous decision of the Tribunal is that the claimant’s claim of indirect religious discrimination is dismissed.

Constitution of Tribunal:
Chairman:			Mr S A Crothers

Members:			Mr M Roddy
				Mrs G Savage

Appearances:
The claimant was represented by Miss T McKenna, instructed by Francis Hanna & Company, Solicitors.  Mr G Daly, Solicitor, from Francis Hanna & Company, Solicitors represented the claimant in providing further written and oral submissions.
The respondent was represented by Mr S Elliott, Barrister-at-Law, instructed by Simmons Meglaughlin & Orr, Solicitors.

THE CLAIM

 1.	The claimant, a Catholic, alleged indirect religious discrimination against the respondent arising out of the respondent’s alleged failure to afford him the opportunity to earn a 331/3% bonus rather than a 25% bonus.  Case Management Discussions were held on 29 July 2008, 29 August 2008 and 5 January 2009.  In the course of these Case Management Discussions both parties agreed that there should be eight lead cases representing eight different categories of claim.  The claimant is in one such category.  The representatives furnished a list of agreed issues.  These were further refined by the Tribunal and agreed by both counsel.  The respondent denied all of the claimant’s allegations.  

THE ISSUES

2.	The issues before the Tribunal in relation to this case are as follows:-

 	(i)	Whether there was a continuing act of discrimination, or, if not, should time be extended to allow the claim in accordance with Article 46(5) of the Fair Employment and Treatment (Northern Ireland) Order 1998 (“the Order”). 

(ii)	If the claims are in time, whether the claimant was the subject of indirect religious discrimination contrary to Article 3(2) of the Order.
	
	The written submissions in relation, inter alia, to the above issues are appended to this decision.  The Tribunal also took into account brief oral submissions made by both parties’ representatives on 23 March 2009.  The Tribunal was not satisfied that the submissions from both parties adequately addressed some key issues in the case.  After due consideration, and following a Case Management Discussion on 7 May 2009, the Tribunal found it necessary to request both parties’ representatives to provide further written and oral submissions on the issues outlined therein.  Further oral submissions were heard on 5 June 2009.

SOURCES OF EVIDENCE

 3.	The Tribunal heard evidence from the claimant and from the respondent’s Head of Human Resources, Brendan Currie, and from the respondent’s Director of Technical Services, Bertie McMinn.  The Tribunal was also presented with documentation and took into account as evidence only those documents specifically referred to in the course of evidence.  The Tribunal was referred to few documents relative to the size of the bundles presented to it.

THE FACTS

 4.	Having carefully considered all of the evidence insofar as same was relevant to the issues before it, the Tribunal made the following findings of fact on the balance of probabilities:-

(i)	In 1989 the respondent introduced an incentive bonus scheme which allowed employees to earn a bonus of 331/3% on top of their basic wages.  This scheme continued until 1993 when, following a competitive tendering exercise, (the outcome of which was to retain services in-house), the respondent decided that employees who commenced employment after the compulsory competitive tendering exercise would have the opportunity to earn a maximum bonus of 25% and not 331/3%.  The bonus schemes were then removed as from 1 April 2004 when single status was introduced.  After that date however employees who had been on the 331/3% bonus had their earnings protected.  A job evaluation process also began in April 2004 but had not been completed in respect of all relevant employees at the date of the Tribunal hearing.

(ii)     The Tribunal was referred to a table setting out statistics in relation to the bonus scheme.  In 1994 and 1995 there were 16 Protestants and one Catholic earning 331/3% bonus.  In 1994 there were two Protestants and two Catholics earning 25% bonus and in 1995 four Protestants and two Catholics.  By 2002 there were 16 Protestants and one Catholic still receiving the 331/3% bonus but 47 Protestants and 46 Roman Catholics receiving the
25% bonus.  In 2003 15 Protestants and one Catholic were receiving the 331/3% bonus with 49 Protestants and 47 Catholics receiving the 25% bonus.  In 2004 the 331/3% bonus was being paid to 14 Protestants and one Catholic and the 25% bonus to 51 Protestants and 46 Catholics.  It is common case that in contrast to the position prior to 1993, the make-up of the workforce changed substantially in subsequent years, as more Catholics joined.  

(ii)	Some of these employees who are on protection may be regraded as a result of job evaluation appeals.  Two employees who are craftsmen and did not come within the single status scheme still earn a 331/3% bonus.  It would appear that apart from these two individuals there are currently several employees still in receipt of the protected bonus of 331/3%.  This was to remain the case until the Review of Public Administration in 2009.

(iv)	The Tribunal is satisfied that attempts have been made over several years involving the respondent, affected employees, and the unions to resolve differences in pay and to ensure that all employees are paid equitably.  The Tribunal was referred to a minute of a meeting with management and union representatives regarding payment of possible bonus arrears held in the respondent’s Chief Executive’s office on 21 November 2002, (the Chief Executive then being Mr William Beattie).  The section headed “Background” in the minutes reads as follows:-

“Mr Beattie said that the purpose of this meeting was to update unions on progress being made regarding arrears to former manuals arising from different rates of bonus and to advise on the present position.  Arising from this situation the Council are involved with the DOE Local Government Division and Chief Local Government Auditor.  Background work has been undertaken but before making payments we require the approval of the Chief Local Government Auditor and the Department.  Several meetings have taken place and discussions with Chief Local Government Auditor are ongoing”.

Also at that meeting were Mr Brendan Currie, Head of Human Resources, Mr Michael Kiddle, Regional Organiser, UCATT, Mr Bertie McMinn, Director of Technical Services, and Mrs Hobson who was responsible for the minutes.  In the last paragraph of the minutes it is recorded as follows:-

	“Mr Kiddle said that a memo had been put up on the notice board saying that the money would be paid.  Mr Currie advised that this had arisen out of the Policy and Performance Monitoring Committee but it did say money would be paid subject to clearance”.  

The memo however had been removed.

(v)	A number of Protestant and Catholics employees lodged claims with the Tribunal Office alleging indirect discrimination against the respondent in 2005.  The Tribunal has no evidence before it as to when precisely these cases were lodged or the number of claimants involved.  The Tribunal is satisfied that in or around October/November 2007 a settlement was reached with the Catholic claimants and arrears paid in full relating to the difference between the existing 25% bonus and the bonus of 331/3% paid to others.  However, the Protestant claimants withdrew their cases some time beforehand on legal advice that they could not succeed in indirect religious discrimination cases as well as the Catholic claimants. The Respondent was advised that it may lose the claims made by the Catholic claimants at tribunal.  The tribunal had no documentary evidence before it concerning the withdrawal and dismissal of any previous claims.

(vi)	The Tribunal sought to ascertain, through Mr Currie, the precise basis for the settlement with the Catholic claimants.  Mr Currie accepted that he was responsible for supervising the conduct of the defence of these  claims and had been involved on behalf of the respondent in the earlier claims brought by the Protestant claimants.  Mr Currie asserted in his evidence that the cases had been settled in 2007 on an individual basis and that there was no admission of liability or of indirect discrimination.  However, the Tribunal found the evidence in relation to the settlement terms unsatisfactory and found Mr Currie to be an unconvincing witness.  It is clear that a settlement was not arrived at by way of compromise agreement or by way of conciliation under the auspices of the Labour Relations Agency.  The Tribunal was not shown any documentary evidence whatsoever in relation to any terms of settlement (if any existed).  Mr Currie had not volunteered any evidence regarding the settlement terms in his written statement of evidence before the Tribunal nor, apart from Mr Currie’s evidence, was any other evidence provided to establish definitively the terms of the settlement.  The Tribunal had therefore no evidence before it that the settlement terms precluded publicity or required confidentiality as to any terms.  Furthermore, the Tribunal is satisfied, even though the cases which were settled in 2007 were not strictly test cases, that there was an understanding among the employees both Catholic and Protestant and the union involved that a settlement would mean that their terms and conditions would be amended to reflect any inequalities in pay.  The Tribunal is also satisfied that this was the advice provided by the union to its members both Protestant and Catholic preceding the settlement in 2007.  

		Mr Currie was also responsible for supervising the Council’s defence of the new claims before this tribunal.  It was only after some effort that the Tribunal ascertained from Mr Currie that he was aware of negotiations leading up to the settlement of the claims in 2007 and that he was responsible for liaising with the respondent’s joint executives and with Council members leading to the approval of the settlement recommended by the respondent’s legal advisors. 

(vii)	The Tribunal heard evidence from Mr McMinn, Director of Technical Services and is satisfied that he understood the general nature of what a test case means.  Moreover, the Tribunal was referred to a document entitled “Stage Two Grievance Meeting 16 January 2008 – Bonus Payments”.  Mr McMinn was in attendance at this meeting together with Mrs A Mullan, Union Facilitator and Mr B Currie, Head of Human Resources.  It is recorded in those minutes that:-

	“Mrs Mullan added that the perception of the test cases had caused problems and there are grievances as after effects of the Tribunal claim settlements.  Protestants now feel discriminated against because Catholics have won awards and the situation has been reversed.  The Bin Loaders and HGV Drivers all feel the same as the General Operatives in this regard.

	Mr McMinn said that he could not comment on why the test cases did not result in others getting an award as he was not an authority on employment law.

	Mrs Mullan added that in order to access the Fair Employment Tribunal, the application must first go through internal procedures.  Certain cases follow on from the previous complaints and a precedent has been set.  The current grievances need to be looked at or new Tribunal applications will arise.  If there is no settlement then there will be a need for action outside of Council procedures.

	Mr McMinn said that may be the road that this has to travel.  Mrs Mullan added that if the issues related to the same job and the same situation this should be cleared internally.  This would save money from an audit point of view.

	Mr McMinn referred to the need to progress re legal advice.  Mrs Mullan agreed but emphasised that the issues need to be sorted out.  She added that if the other Catholic employees had lodged/remained with tribunal applications, they would have received a settlement.

	Mr McMinn said all Council Officers wanted to see this matter sorted out fairly.  Mrs Mullan agreed to an extension of the times within the Grievance Procedure to allow legal advice to be taken and Mr McMinn and Mrs Mullan agreed that the grievance only relates to the 331/3% as opposed to the 25% bonus payments at present.”

	On 8 April 2008 Mr McMinn wrote to Mrs Mullan, the Union Facilitator in the following terms:-

		“Dear Angela 

		Re:	BONUS PAYMENTS

	Further to the appeal hearing held on 16 January 2008 I have requested detailed legal advice on the various issues involved and have recently received a response from Council’s Solicitors.  It is now my intention to arrange an early meeting with the Chief Local Government Auditor to ascertain his views on permitted payments to employees.

		I am sorry for the delay in processing this matter but I am sure you will understand the need for Council to ensure it is proceeding in an appropriate [manner].

		I will write to you again when I have received a response from Mr Buchanan.

		Yours sincerely”

	(viii)	The claimant who commenced employment with the respondent on 29 March 1999 as a skilled operative signed a claim alleging indirect discrimination on 4 March 2008 and identified his legal representation therein.  His claim is identical to the claims involving Catholic claimants which were settled in or about October/November 2007.  The Tribunal is satisfied that the date of the act complained of ie knowledge of 1 November 2007 is in reality the date of his knowledge of the settlement with Catholic claimants and not the date of knowledge of the act complained of for the purposes of Article 46 of the Order.  It is common case that a collective grievance was lodged with the respondent on 11 December 2007 which included the claimant.  The respondent acknowledged that it had been responsible for delay in progressing the grievance and decided not to conclude the grievance process but to allow further Fair Employment Tribunal claims to take their course.  The claimant’s claim was presented to the Tribunal Office on 2 May 2008.

(ix)	The claimant received a 25% bonus payment in common with other Catholic and Protestant employees in or about the year 2000.  He named Derek Montgomery, William Burrows, Kenneth McMinn and David McQuigg as his comparators.  All four are perceived to be Protestant.  However during the course of the hearing the comparators were reduced to Derek Montgomery who is also a skilled operative and is on a protected bonus of 331/3%.  The claimant alleged that the respondent made compensation payments to certain Catholic employees in 2007 and paid them the additional 8.3% bonus from the commencement of their employment, and the decision not to do so in his case was a discriminatory practice.  At the date of the Tribunal hearing the claimant’s job evaluation appeal had not been completed.  

(x)	As far as the claimant was concerned the cases settled in 2007 were essentially test cases.  The claimant clearly expected to be compensated when the other claims were settled in October/November 2007 and when this did not happen he lodged a grievance as part of a collective grievance.  

TIME ISSUES

 5.	(1)	Article 46 of the Order states that:-

		“46.-(1) Subject to paragraph (5) and to any regulations under Article 22 of the Employment (Northern Ireland) Order 2003, the Tribunal shall not consider a complaint under Article 38 unless it is brought before whichever is the earlier of-

	(a)	the end of the period of 3 months beginning with the day on which the complaint first had knowledge, or might reasonably be expected first to have had knowledge, of the act complained of; or

	(b)	the end of the period of 6 months beginning with the day on which the act was done…….

 (5) A court or the Tribunal may nevertheless consider any such complaint, claim or application which is out of time if, in all the circumstances of the case, it considers that it is just and equitable to do so.

(6)	 For the purposes of this Article-……..

(b)	any act extending over a period shall be treated as done at the end of that period; and

(c)	a deliberate omission shall be treated as done when the person in question does an act inconsistent with doing the omitted act or, if he had done no such inconsistent act, when the period expires within which he might reasonably have been expected to do the omitted act if it were to be done.”

	(2)	The Tribunal is satisfied that the claimant’s allegations which span the period from the commencement of his employment with the respondent in March 1999, are prima facie a continuing act [which crystallised on 1 November 2007] as contended by the claimant’s counsel in her written submissions and therefore the claim is in time.  As Harvey states at T113 – T116;

				“(ii)	A continuing act of discrimination

		The meaning of the phrase ‘when the act complained of was done’ is extended by the (identical) provisions of RRA s 68(7), SDA s 76(6) and DDA Sch 3 para 3(3), which provide that (a) where the inclusion of a term in a contract renders the making of the contract an unlawful act, that act shall be treated as extending throughout the duration of the contract; (b) an act extending over a period shall be treated as done at the end of the period; and (c) a deliberate omission shall be treated as done when the person in question decided upon it.

		The position under (a) is straightforward, and time will not begin to run until the contract is terminated.  As between (b) and (c), the distinction is that an extended act under (b) involves ‘a continuous state of affairs’, whereas a deliberate omission under (c) contemplates a ‘one-off decision’ (Barclays Bank plc  v  Kapur [1991] IRLR 1 136, [1991] ICR 208, HL, per Lord Griffiths).  So, in the former case, time will not begin to run as long as the continuous state of affairs persists; in the latter, it will begin to run as soon as the decision is made.

		Under (b), an act will be regarded as extending over a period, and so treated as done at the end of that period, if an employer maintains and keeps in force a discriminatory regime, rule, practice of principle which has had a clear and adverse effect on the complainant (Barclays Bank plc  v  Kapur [1989] IRLR 387, [1989] ICR 753, CA; affd.  [1991] IRLR 136, [1991] ICR 208, HL).  Examples of such an act are the continuance of a mortgage subsidy scheme for male employees (Calder  v  James Finlay Corpn Ltd (1982) [1989] IRLR 55, [1989] ICR 157n, EAT), and the continuance of a pension scheme containing a provision that discriminated racially against employees whose provision service was in Africa, rather than in Europe (Barclays Bank  v Kapur, above).  In each of these cases, the schemes in question continued throughout the applicants’ employment.  Consequently, the applicant in Calder was able to bring her claim within three months of the date of termination of her employment, even though the actual refusal of her application for a mortgage subsidy occurred some five months before that date.  Likewise, in Kapur, the applicants were able to pursue claims of racial discrimination in 1987, even though they had joined the scheme of which they complained in the early 1970s.  Another example of a continuing act under (b) above is where employers failed to implement remedial measures which they had promised to take in response to an employee’s complaint of racial abuse (Littlewoods Organisation plc  v  Traynor [1993] IRLR 154, EAT).  There, too, the employee was held to be in time notwithstanding that the original act complained of had occurred more than three months prior to the presentation of his application to the tribunal.  It is to be noted, however, that an act occurring after the presentation of the applicant’s complaint may not be taken into account when determining whether there was a continuing act (Robertson v Bexley Community Centre [2003] EWCA Civ 576, [2003] IRLR 434, at para 21).

		In determining the existence of a continuing act, it is important to distinguish between the continuance of the discriminatory act itself (eg the schemes and practices in the above cases), and the continuance of the consequences of a discriminatory act, for it is only in the former case that the act will be treated as extending over a period (Barclays Bank plc  v  Kapur [1989] IRLR 387 at 392).  This distinction is well illustrated by Amies  v  Inner London Education Authority [1977] 2 All ER 100, [1977] ICR 308, EAT.  In that case, a man was appointed to a particular post in preference to the applicant.  As the appointment was made before the commencement of the SDA, the applicant (who was a teacher employed at the school at which the vacancy occurred) needed to show under s 76(6)(b) that the discriminatory act was of a continuing nature.  She was unable to do so.  The EAT held that, in the absence of any evidence of a discriminatory policy, the appointment of the man constituted a single act of discrimination, with the result that she was barred from presenting her complaint.  But, as Bristow J pointed out, had the employers operated a rule that the post in question was open to men only, this would have been a continuing discrimination, and the applicant would then have been able to have her complaint heard.  It was not, however, sufficient to show that the consequences of the discriminatory act continued; what mattered was whether the act itself continued.”  

		Reference was also made in the course of the hearing to Regulation 15 of the Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004 the effect of which is, for the purposes of this case, that the grievance having been raised in writing within three months from the alleged date of knowledge of the act complained of, the normal time limit for presenting the complaint is extended for a period of three months beginning with the day after the day on which it would otherwise have expired.  Three months from 1 November 2007 ends on 1 February 2008.  This means that the further three months runs from 2 February 2008 until 2 May 2008 and the claim is therefore in time.  Even if the Tribunal is incorrect in this conclusion and the continuing act (supra), it is satisfied on the basis of the facts as found, and in accordance with the relevant legislation and case law outlined in the submissions, that it is just and equitable to extend time in order for the Tribunal to have jurisdiction to consider the claimant’s claim, even if the claimant might reasonably be expected first to have had knowledge of the act complained of at a time similar to the Catholic claimants whose cases were settled.

THE REMAINING ISSUES

THE LAW AND BURDEN OF PROOF

 6.	(1)	Article 3(2) of the Order states as follows:-

		“A person discriminates against another person on the ground of religious belief or political opinion in any circumstances relevant for the purposes of a provision of this Order, other than a provision to which paragraph (2A) applies, if-

			(a)	on either of those grounds he treats that other less favourably than he treats or would treat other persons; or

			(b)	he applies to that other a requirement or condition which he applies or would apply equally to persons not of the same religious belief or political opinion as that other but-

			(i)	which is such that the proportion of persons of the same religious belief or of the same political opinion as that other who can comply with it is considerably smaller than the proportion of persons not of that religious belief or, as the case requires, not of that political opinion who can comply with it; and 

			(ii)	which he cannot show to be justifiable irrespective of the religious belief or political opinion of the person to whom it is applied; and 

			(iii)	which is to the detriment of that other because he cannot comply with it.

			(2A) A person also discriminates against another person on the
		ground of religious belief or political opinion in any circumstances relevant for the purposes of any provision referred to in paragraph (2B) if-

			(a)	on either of those grounds he treats that other less favourably than he treats or would treat other person; or 

			(b)	he applies to that other a provision, criterion or practice which he applies or would apply equally to persons not of the same religious belief or political opinion as that other but-

				(i)	which puts or would put persons of the same religious belief or of the same political opinion as that other at a particular disadvantage when compared with other persons;

				(ii)	which puts that other at that disadvantage; and

				(iii)	which he cannot show to be a proportionate means of achieving a legitimate aim.

			(2B)	The provisions mentioned in paragraph (2A) are-

(a)	Part III;

(b)	Article 27, so far as it applies to vocational training or vocational guidance; 

(c)	Article 32; and

(d)	Part V, in its application to the provisions referred to in sub-paragraphs (a) to (c).

	(3)	A comparison of the cases of persons of different religious belief or political opinion under paragraph (2) or (2A) must be such that the relevant circumstances in the one case are the same, or not materially different, in the other”.

	(2)	Regulation 24 of the 2003 Fair Employment Regulations inserts a new Section 38A in the 1998 Order.  It deals with the burden of proof and provides:-

“Where, on the hearing of a complaint under Article 38, the complainant proves facts from which the Tribunal could, apart from this Article, conclude in the absence of an adequate explanation that the respondent:-

(a)	has committed an act of unlawful discrimination or unlawful harassment against the complainant, or

(b)	is by virtue of Article 35 or 36 to be treated as having committed such an act of discrimination or harassment against the claimant; 

the Tribunal shall uphold the complaint unless the respondent proves that he did not commit, or as the case maybe, is not to be treated as having committed that act”.

(3)	In the case of Igen Ltd (formerly Leeds Carers’ Guidance) and Others -v- Wong; Chamberlain Solicitors -v- Emokpae; Brunel University –v- Webster [2005] IRLR 258, the Court of Appeal in England and Wales set out guidance on the interpretation of the statutory provisions shifting the burden of proof in cases of sex, race and disability discrimination.  This guidance also applies to cases of discrimination on the grounds of religion/political opinion and states as follows:-

	(i)	Pursuant to Section 63A of the 1975 Act, it is for the claimant who complains of [sex] discrimination to prove on the balance of probabilities facts from which the Tribunal could conclude, in the absence of an adequate explanation, that the employer has committed an act of discrimination against the claimant which is unlawful by virtue of Part 2, or which, by virtue of Section 41 or Section 42 of the 1975 Act, is to be treated as having been committed against the claimant.  These are referred to below as ‘such facts’.

(ii)	If the claimant does not prove such facts he or she will fail.

(iii)	It is important to bear in mind in deciding whether the claimant has provided such facts that it is unusual to find direct evidence of sex discrimination.  Few employers would be prepared to admit such discrimination, even to themselves.  In some cases the discrimination will not be an intention but merely based on the assumption that ‘he or she would not have fitted in’.

(iv)	In deciding whether the claimant has proved such facts, it is important to remember that the outcome at this stage of the analysis by the Tribunal will therefore usually depend on what inferences it is proper to draw from the primary facts found by the Tribunal.

(v)	It is important to note the word ‘could’ in Section 63A(2).  At this stage the Tribunal does not have to reach a definitive determination that such facts would lead it to the conclusion that there was an act of unlawful discrimination.  At this stage a Tribunal is looking at the primary facts before it to see where inferences of secondary facts could be drawn from them.

(vi)	In considering what inferences or conclusions can be drawn from the primary facts, the Tribunal must assume that there is no adequate explanation for those facts.

(vii)	These inferences can include, in appropriate cases, any inferences that it is just and equitable to draw in accordance with Section 74(2)(b) of the 1975 Act from an evasive or equivocal reply to a questionnaire or any other questions that fall within Section 74(2) of the 1975 Act.

(viii)	Likewise, the Tribunal must decide whether any provision of any relevant Code of Practice is relevant and, if so, take it into account in determining such facts pursuant to Section 56A(1) of the 1975 Act.  This means that inferences may also be drawn from any failure to comply with any relevant Code of Practice.

(ix)	Where the claimant has proved facts from which conclusions could be drawn that the employer has treated the claimant less favourably on the ground of sex, then the burden of proof moves to the employer.

(x)	It is then for the employer to prove that they did not commit, or as the case may be, is not to be treated as having committed, that act.

(xi)	To discharge that burden it is necessary for the employer to prove, on the balance of probabilities, that the treatment was in no sense whatsoever on the grounds of sex, since ‘no discrimination whatsoever’ is compatible with the Burden of Proof Directive.

(xii)	That requires a Tribunal to assess not merely whether the employer has proved an explanation for the facts from which such inferences can be drawn, but further that it is adequate to discharge the burden of proof on the balance of probabilities that sex was not a ground for the treatment in question.
 
(xiii)	Since the facts necessary to prove an explanation would normally be in the possession of the respondent, a Tribunal would normally expect cogent evidence to discharge that burden of poof.  In particular, the Tribunal will need to examine carefully explanations for failure to deal with the questionnaire procedure and/or Code of Practice.

	(4)	The Tribunal also considered the Northern Ireland Court of Appeal decision in McDonagh & Others -v- Hamilton Thom Trading as the Royal Hotel Dungannon (2007) NICA 3 together with the cases of Madarassy –v- Nomur International PLC (2007) IRLR 246 (“Madarassy”), Laing –v- Manchester City Council (2006) IRLR 748 EAT and Mohmed –v- Westcoast Trains Ltd (2006) UK EAT O682053008.  It is clear from those authorities that in deciding whether a claimant has proved facts from which the Tribunal could conclude in the absence of an adequate explanation that discrimination had occurred, the Tribunal must consider evidence adduced by both the claimant and the respondent, putting to one side the employer’s explanation for the treatment.  As Lord Justice Mummery stated in Madarassy at paragraphs 56 and 57 -

“The Court in Igen –v- Wong expressly rejected the argument that it was sufficient for the complainant simply to prove facts from which the Tribunal could conclude that the respondent “could have” committed an unlawful act of discrimination.  The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination.  They are not, without more, sufficient material from which a Tribunal ‘could conclude’ that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination.

‘Could conclude’ in s.63A(2) must mean that ‘a reasonable Tribunal could properly conclude’ from all the evidence before it.  This would include evidence adduced by the complainant in support of the allegations of sex discrimination, such as evidence of a difference in status, a difference in treatment and the reason for the differential treatment.  It would also include evidence adduced by the respondent contesting the complaint.  Subject only to the statutory ‘absence of inadequate explanation’ at this stage …, the Tribunal would need to consider all the evidence relevant to the discrimination complaint; for example, evidence as to whether the act complained of occurred at all; evidence as to the actual comparators relied on by the complainant to prove less favourable treatment; evidence as to whether the comparisons being made by the complainant were of like with like as required by S.5(3) of the 1975 Act; and available evidence of the reasons for the differential treatment”.

	(5)	The Tribunal also received valuable assistance from Mr Justice Elias’ judgement in the case of London Borough of Islington  v  Ladele & Liberty (EAT) [2009] IRLR 154, at paragraphs 40 and 41, which read as follows:-

	“Whilst the basic principles are not difficult to state, there has been extensive case law seeking to assist tribunals in determining whether direct discrimination has occurred.  The following propositions with respect to the concept of direct discrimination, potentially relevant to this case, seem to us to be justified by the authorities:

		(1)  In every case the tribunal has to determine the reason why the claimant was treated as he was.  As Lord Nicholls put it in Nagarajan  v  London Regional Transport [1999] IRLR 572, 575 – ‘this is the crucial question’.  He also observed that in most cases this will call for some consideration of the mental processes (conscious or sub-conscious) of the alleged discriminator.

		(2)  If the tribunal is satisfied that the prohibited ground is one of the reasons for the treatment, that is sufficient to establish discrimination.  It need not be the only or even the main reason.  It is sufficient that it is significant in the sense of being more than trivial: see the observations of Lord Nicholls in Nagarajan (p.576) as explained by Peter Gibson LJ in Igen  v  Wong [2005] IRLR 258, paragraph 37.

			(3)  As the courts have regularly recognised, direct evidence of discrimination is rare and tribunals frequently have to infer discrimination from all the material facts.  The courts have adopted the two-stage test which reflects the requirements of the Burden of Proof Directive (97/80/EEC).  These are set out in Igen  v  Wong.  That case sets out guidelines in considerable detail, touching on numerous peripheral issues.  Whilst accurate, the formulation there adopted perhaps suggests that the exercise is more complex than it really is.  The essential guidelines can be simply stated and in truth do no more than reflect the common sense way in which courts would naturally approach an issue of proof of this nature.  The first stage places a burden on the claimant to establish a prima facie case of discrimination:

		‘Where the applicant has proved facts from which inferences could be drawn that the employer has treated the applicant less favourably [on the prohibited ground], then the burden of proof moves to the employer.’

		If the claimant proves such facts then the second stage is engaged.  At that stage the burden shifts to the employer who can only discharge the burden by proving on the balance of probabilities that the treatment was not on the prohibited ground.  If he fails to establish that, the tribunal must find that there is discrimination.  (The English law in existence prior to the Burden of Proof Directive reflected these principles save that it laid down that where the prima facie case of discrimination was established it was open to a tribunal to infer that there was discrimination if the employer did not provide a satisfactory non-discriminatory explanation, whereas the Directive requires that such an inference must be made in those circumstances: see the judgment of Neill LJ in the Court of Appeal in King  v  The Great Britain-China Centre [1991] IRLR 513.)

			(4)  The explanation for the less favourable treatment does not have to be a reasonable one; it may be that the employer has treated the claimant unreasonably.  That is a frequent occurrence quite irrespective of the race, sex, religion or sexual orientation of the employee.  So the mere fact that the claimant is treated unreasonably does not suffice to justify an inference of unlawful discrimination to satisfy stage one.  As Lord Browne-Wilkinson pointed out in Zafar  v  Glasgow City Council [1997] IRLR 229:
	
			‘it cannot be inferred, let alone presumed, only from the fact that an employer has acted unreasonably towards one employee that he would have acted reasonably if he had been dealing with another in the same circumstances.’

		Of course, in the circumstances of a particular case unreasonable treatment may be evidence of discrimination such as to engage stage two and call for an explanation: see the judgment of Peter Gibson LJ in Bahl  v  Law Society [2004] IRLR 799, paragraphs 100, 101 and if the employer fails to provide a non-discrimination explanation for the unreasonable treatment, then the inference of discrimination must be drawn.  As Peter Gibson LJ pointed out, the inference is then drawn not from the unreasonable treatment itself – or at least not simply from that fact – but from the failure to provide a non-discriminatory explanation for it.  But if the employer shows that the reason for the less favourable treatment has nothing to do with the prohibited ground, that discharges the burden at the second stage, however unreasonable the treatment.

			(5)  It is not necessary in every case for a tribunal to go through the two-stage procedure.  In some cases it may be appropriate for the tribunal simply to focus on the reason given by the employer and if it is satisfied that this discloses no discrimination, then it need not go through the exercise of considering whether the other evidence, absent the explanation, would have been capable of amounting to a prima facie case under stage one of the Igen test:  see the decision of the Court of Appeal in Brown  v  Croydon LBC [2007] IRLR 259 paragraphs 28-39.  The employee is not prejudiced by that approach because in effect the tribunal is acting on the assumption that even if the first hurdle has been crossed by the employee, the case fails because the employer has provided a convincing non-discriminatory explanation for the less favourable treatment.

			(6)  It is incumbent on a tribunal which seeks to infer (or indeed to decline to infer) discrimination from the surrounding facts to set out in some detail what these relevant factors are: see the observations of Sedley LJ in Anya  v  University of Oxford [2001] IRLR 377 esp paragraph 10.

			(7) As we have said, it is implicit in the concept of discrimination that the claimant is treated differently than the statutory comparator is or would be treated.  The proper approach to the evidence of how comparators may be used was succinctly summarised by Lord Hoffmann in Watt (formerly Carter)  v  Ahsan [2008] IRLR 243, a case of direct race discrimination by the Labour Party.  Lord Hoffmann summarised the position as follows (paragraphs 36-37):

			’36.  The discrimination … is defined … as treating someone on racial grounds “less favourably than he treats or would treat other persons”.  The meaning of these apparently simple words was considered by the House in Shamoon  v  Chief Constable of the Royal Ulster Constabulary [2003] IRLR 285.  Nothing has been said in this appeal to cast any doubt upon the principles there stated by the House, but the case produced five lengthy speeches and it may be useful to summarise:

			(1)  The test for discrimination involves a comparison between the treatment of the complainant and another person (the “statutory comparator”) actual or hypothetical, who is not of the same sex or racial group, as the case may be.  

			(2)  The comparison requires that whether the statutory comparator is actual or hypothetical, the relevant circumstances in either case should be (or be assumed to be), the same as, or not materially different from, those of the complainant …

			(3)  The treatment of a person who does not qualify as a statutory comparator (because the circumstances are in some material respect different) may nevertheless be evidence from which a tribunal may infer how a hypothetical statutory comparator would have been treated: see Lord Scott of Foscote in Shamoon at paragraph 109 and Lord Rodger of Earlsferry at paragraph 143.  This is an ordinary question of relevance, which depends upon the degree of the similarity of the circumstances of the person in question (the “evidential comparator”) to those of the complainant and all the other evidence in the case.

		37.  It is probably uncommon to find a real person who qualifies … as a statutory comparator.  Lord Rodger’s example at paragraph 139 of Shamoon of the two employees with similar disciplinary records who are found drinking together in working time has a factual simplicity which may be rare in ordinary life.  At any rate, the question of whether the differences between the circumstances of the complainant and those of the putative statutory comparator are “materially different” is often likely to be disputed.  In most cases, however, it will be unnecessary for the tribunal to resolve this dispute because it should be able, by treating the putative comparator as an evidential comparator, and having due regard to the alleged differences in circumstances and other evidence, to form a view on how the employer would have treated a hypothetical person who was a true statutory comparator.  If the tribunal is able to conclude that the respondent would have treated such a person more favourably on racial grounds, it would be well advised to avoid deciding whether any actual person was a statutory comparator.’

	The logic of Lord Hoffmann’s analysis is that if the tribunal is able to conclude that the respondent would not have treated the comparator more favourably, then again it is unnecessary to determine what are the characteristics of the statutory comparator.  This chimes with Lord Nicholls’ observations in Shamoon to the effect that the question whether the claimant has received less favourable treatment is often inextricably linked with the question why the claimant was treated as he was.  Accordingly:

	‘employment tribunals may sometimes be able to avoid arid and confusing disputes about the identification of the appropriate comparator by concentrating primarily on why the claimant was treated as she was’ (paragraph 10).
	
	This approach is also consistent with the proposition in point (5) above.  The construction of the statutory comparator has to be identified at the first stage of the Igen principles.  But it may not be necessary to engage with the first stage at all”.

	(6)	(i)	The above relates mainly to direct discrimination.  In relation to the burden of proof in indirect discrimination cases, useful guidance is to be obtained from the case of Nelson -v- Carillion Services Ltd (2003) IRLR 428 CA, where Simon Brown LJ reviewed the state of the law in light of the changes made by the 2001 Regulations and concluded:

		“It seems to me tolerably clear that the effect of s.63A was to codify rather than alter the pre-existing position established by the case law.  The burden of proving indirect discrimination under the 1975 Act was … always on the complainant, and there pursuant to s.63A it remains, the complainant still having to prove facts from which the Tribunal could conclude that he or she has been unlawfully discriminated against “in the absence of an adequate explanation from the employer”.  Unless and until the complainant establishes that the condition in question has had a disproportionate adverse impact upon his/her sex the Tribunal could not in my judgement, even without explanation from the employer, conclude that he or she has been unlawfully discriminated against”.

		The Tribunal is mindful of the fact that part of this case is based on the definition of indirect discrimination preceding December 2003.  There is little guidance from the authorities as to how precisely the burden of proof operates in indirect discrimination cases.  

		(ii)	Harvey on Industrial Relations and Employment Law (“Harvey”) comments in Volume 2 at L [193] as follows (in relation to the Nelson case (Supra)):-

		“That view of the limited impact to be accorded to s63A in relation to indirect discrimination contrasts with the much wider scope which the provision has been seen to have when it comes to the drawing of inferences of direct discrimination … Whatever the precise scope of s63A, claimants remain under an obligation to bring to the tribunal some evidence in support of allegations of disproportionate impact, and this will usually involve both the use of statistics and the concept of a “pool” of affected individuals, real or hypothetical, to test the consequences of the provision, criterion or practice which is being subjected to scrutiny”.  

		(iii)	The Tribunal considered the implications arising from the case of Rutherford & Another –v- Secretary of State for Trade and Industry (No. 2) (2006) UKHL19, [2006] IRLR 551 and in particular the judgement of Baroness Hale at paragraph 72 where she states:-

		“It is of the nature of such apparently neutral criteria or rules that they apply to everyone, both the advantaged and the disadvantaged groups.  So it is no answer to say that the rule applies equally to men and women, or to each racial or ethnic or national group, as the case may be.  The question is whether it puts one group at a comparative disadvantage to the other.  However, the fact that more women than men, or more whites than blacks, are affected by it is not enough.  Suppose, for example, a rule requiring that trainee hairdressers be at least 25 years old.  The fact that more women than men want to be hairdressers would not make such a rule discriminatory.  It would have to be shown that the impact of such a rule worked to the comparative disadvantage of would-be female or male hairdressers as the case might be”.

		(iv)	The Tribunal carefully considered the relevant section in Harvey on indirect discrimination at L [171] ff.  It also took into account Lord Justice Sedley’s judgement in the case of Grundy -v- British Airways Plc [2007] EWCA Civ 1020, [2008] IRLR 74, where, in relation to establishing a pool, he states at paragraph 27:-

			“The correct principle, in my judgement, is that the pool must be one which suitably tests the particular discrimination complained of: but this is not the same thing as the proposition that there is a single suitable pool for every case.  In fact, one of the striking things about both the race and sex discrimination legislation is that, contrary to early expectations, three decades of litigation have failed to produce any universal formula for locating the correct pool, driving tribunals and courts alike to the conclusion that there is none”.

		He continues in paragraphs 30 and 31 to state:-

			“The dilemma for fact-finding tribunals is that they can neither select a pool to give a desired result, nor be bound always to take the widest or narrowest available pool, yet have no principle which tells them what is a legally correct or defensible pool … Rutherford (No.2) seems to me to be a striking illustration of Lord Nicholls’ proposition that the assessment of disparate impact is a question of fact, limited like all questions of fact by the dictates of logic.  In discrimination claims the key determinant of both elements is the issue which the claimant has elected to pose and which the tribunal is therefore required to evaluate by finding a pool in which the specificity of the allegation can be realistically tested.  Provided it tests the allegation in a suitable pool, the tribunal cannot be said to have erred in law even if a different pool, with a different outcome, could equally legitimately have been chosen.  We do not accept that Rutherford is authority for the routine selection of the widest possible pool; nor therefore that any question arises of “looking at” a smaller pool for some unspecified purpose short of determining the case”.

		(v)	In relation to the aspect of justification, the Tribunal took into account the paragraphs in Harvey at L [207] to [214] and the relevant cases referred to therein beginning with the decision of the European Court of Justice in Bilka-Kaufhaus GmbH -v- Weber Von Hartz 170/84 [1986] IRLR 317.  In relation to the issue of proportionality it considered the case of Hardys and Hansons Plc -v- Lax [2005] EWCA Civ 846, (2005) IRLR 726, CA.  As Harvey comments at L 213:-

			“The Court held that there was no scope, in discrimination law, for a test based on “the band of reasonable responses which a reasonable employer would adopt” – ie the test for culpable unfairness in the law of unfair dismissal.  The test, emphasised the CA, is what is objectively justified.  The principle of proportionality requires the tribunal to take account of the reasonable needs of the business, but at the end of the day it was for the tribunal to make its own judgement as to whether the rule imposed was “reasonably necessary”.  It is not enough that the view is one which a reasonable employer could take”.  Harvey then continues to comment that “while this decision was given on the basis of the “old” (ie pre October 2005) definition of indirect discrimination, the reference to the principle of proportionality fits very well with the “new” test of justification “a proportionate means of achieving a legitimate aim”.  Unless and until superior courts indicate the contrary, it is thought it thus offers a reliable guide to how the new wording should be read”.

		The new definition of indirect discrimination was inserted by the Fair Employment and Treatment Order (Amendment) Regulations (Northern Ireland) 2003 (now Article 3(2A) of the Order).  Article 3(2B) makes it clear that the provisions mentioned in paragraph 2A relate to Part III of the Order (discrimination in the employment field).

		(vi)	The tribunal also reminded itself of the need in an indirect discrimination case for the claimant to identify precisely what the alleged provision criterion and practice (“PCP”) is and when it applied to the claimant.  Similar principles apply to the definition of indirect discrimination preceding 10 December 2003.  The claimant has to show that the PCP applied to others in the same group at the same time and that they also were put to a disadvantage.  An assumption is therefore made that the PCP applies to all but adversely affects a particular group.  Ascertaining when the PCP applies affects:-

			(a)	The group allegedly suffering the disadvantage as circumstances may fluctuate and therefore timing is crucial.

(b)	Whether the claimant actually suffered a disadvantage.

(c)	The time limits and in particular if it is alleged that there was a continuous act, when that act was done.  

		In both direct and indirect discrimination cases a comparison of the cases of persons of different sex must be such that the relevant circumstances in one case are the same, or not materially different in the other (Article 7 of the Order).  Moreover, Elias J made clear in the case of Ladele (supra) that any defence raised by a respondent to show that the PCP is a proportionate means of achieving a legitimate end must be subjected to “careful and sophisticated analysis”.

SUBMISSIONS

 7.	The Tribunal carefully considered the submissions referred to at paragraph 2 above.

CONCLUSIONS

 8.	Having considered the evidence together with the submissions and relevant authorities, and applied the principles of law to the findings of fact the Tribunal concludes as follows:-

 (1)	The Tribunal is satisfied that the settlement made with Catholic claimants in 2007 has had the effect of producing an unsatisfactory and inequitable state of affairs, for certain employees, Protestant and Catholic alike.

 (2)	The tribunal is, however, unable, on the basis of the limited evidence before it, (and quite apart from the articulation in the claimant’s submissions of the requirement or condition under the definition of indirect discrimination preceding 10 December 2003 or the provision, criterion or practice thereafter, and the issue of comparators), to establish a pool wherein the specificity of the allegation can be realistically tested in accordance with the Grundy case referred to above.

 (3)	Although the Tribunal sympathises with the claimant in the circumstances in which he finds himself, his claim is dismissed.   

Chairman:

Date: 		     9-12 March 2009; 23 March & 5 June 2009, Belfast

Date decision recorded in register and issued to parties: